Exhibit 10.3


 


FEE AND INTEREST EQUITIZATION AGREEMENT


 


This Fee and Interest
Equitization Agreement (this “Agreement”), dated as of May 14, 2020, is made by and among Babcock & Wilcox
Enterprises, Inc., a Delaware corporation (the “Company”), B. Riley Financial, Inc. (“B. Riley Financial”)
and, solely for purposes of Section 13 hereof, B. Riley FBR, Inc. (“B. Riley FBR”). As used herein, “Parties”
refers collectively to the Company and B. Riley Financial.


 


RECITALS


 


1. B. Riley
Financial and B. Riley FBR are the sole Term Loan Lenders, as such term is defined in the Amended and Restated Credit
Agreement, dated as of May 14, 2020 (the “Amended and Restated Credit Agreement”), among the Company, as
the borrower, Bank of America, N.A., as administrative agent, and the other lenders party thereto.


 


2. In connection
with their entry into the Amended and Restated Credit Agreement, the Company has agreed pursuant to a fee letter dated the
date hereof between B. Riley Financial and the Company (the “B. Riley Fee Letter”) to pay to B. Riley
Financial an aggregate fee of $3,900,000.00 with respect to the provision of the B. Riley Limited Guaranty on the terms and
conditions set forth in this Agreement (the “Fee Payment”).


 


3. On the terms
and conditions set forth in this Agreement, B. Riley Financial has agreed to accept payment of the Fee Payment and
payment of interest with respect to the Term Loans payable between the date hereof and December 31, 2020 that is waived under
the Amended and Restated Credit Agreement (the “Interest Payments” and, together with the Fee Payment, the
“Payment Amounts”) in shares of the Company’s common stock, par value $0.01 per share
(“Common Stock”), in lieu of payment in cash pursuant to the terms of the Amended and Restated Credit
Agreement or the B. Riley Fee Letter, as applicable.


 


Now, therefore, in
consideration of the mutual promises, agreements, representations, warranties, and covenants contained herein, the Parties hereby
agree as follows:


 


Section 1. Payment of Payment
Amounts in Common Stock.


 


(a) Satisfaction
of Payment Amounts in Common Stock. On the terms and subject to the conditions set forth in this Agreement, including Section
5, in satisfaction of any requirement contained in the B. Riley Fee Letter that the Fee Payment be paid by the Company to
B. Riley Financial, or any requirement contained in the Amended and Restated Credit Agreement that the Interest Payments be
paid by the Company to the Term Loan Lenders, B. Riley Financial agrees to purchase and accept from the Company on the
applicable Settlement Date (as defined below), and the Company agrees to sell, issue and deliver to B. Riley Financial
on the applicable Settlement Date, a number of shares of Common Stock (the “Shares”) equal to (x) the
aggregate dollar value of the applicable Payment Amount divided by (y) subject to Section 1(c), the Conversion
Price. For purposes of this Agreement:


 


(i)
“Average VWAP” means, with respect to any period of Trading Days, the average of the VWAP for each Trading
Day in such period.


 



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(ii) “Conversion
Price” means the Average VWAP over the fifteen (15) consecutive Trading Days beginning on and including the Trading Day
immediately following the date of this Agreement (such period, the “Measurement Period”); provided that
(A) the Conversion Price shall be subject to adjustment as described in Section 1(d) and (B) prior to the receipt of any
stockholder approvals under the rules of the New York Stock Exchange (“NYSE”), the Conversion Price shall not
be less than $1.55 (subject to adjustment pursuant to Section 1(d)).


 


(iii) “Market
Disruption Event” means any of the following events: (A) any suspension of, or limitation imposed on, trading by
the Principal Stock Exchange in shares of Common Stock during any period or periods aggregating one half-hour or longer and whether
by reason of movements in price exceeding limits permitted by the Principal Stock Exchange or otherwise relating to the Common
Stock; or (B) the failure to open of the exchange or quotation system on which the Common Stock is traded or the closure of such
exchange or quotation system prior to its respective scheduled closing time for the regular trading session on such day (without
regard to after hours or other trading outside the regular trading session hours).


 


(iv)
“Principal Stock Exchange” means the NYSE or, if the Common Stock is not listed on the NYSE, the principal
national securities exchange or public quotation system on which the Common Stock is then listed for trading or quoted.


 


(v) “Trading
Day” means any day on which (A) there is no Market Disruption Event and (B) the Principal Stock Exchange is open for
trading, or, if the Common Stock is not listed on a national securities exchange, any Business Day; provided that a “Trading
Day” only includes those days that have a scheduled closing time of 4:00 p.m. (New York City time) or the then standard
closing time for regular trading on the relevant exchange or trading system.


 


(vi)
“Settlement Date” means (A) with respect to the Fee Payment, the first Business Day following the
Measurement Period and (B) with respect to an Interest Payment, the scheduled interest payment date as provided for in the
Amended and Restated Credit Agreement without giving effect to any waiver or deferral contemplated thereby.


 


(vii) “VWAP”
means, on any Trading Day, the per share volume-weighted average price as displayed under the heading “Bloomberg VWAP”
on Bloomberg page (or its equivalent successor if such page is not available) BW <Equity> AQR in respect of the period from
9:30 a.m. to 4:00 p.m., New York City time, on such Trading Day, or, if such price is not available, the market value per share
of the Common Stock on such Trading Day as determined by a nationally recognized investment banking firm retained by the Company
for this purpose.


 






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(b) Compliance
with Stock Exchange Listing Requirements. The Company shall use its reasonable best efforts to take, or cause to be
taken, all actions, and do or cause to be done, all things, necessary, proper or advisable on its part to obtain, prior to
the applicable Settlement Date, any necessary stockholder approval under the rules of the Principal Stock Exchange, or the
application of any available exemption therefrom, for the sale, issuance and delivery of the Shares pursuant to this
Agreement. B. Riley Financial agrees to, and to cause each of its subsidiaries to, cause all issued and outstanding shares of
Common Stock beneficially owned by any of them to (i) be present at each meeting of the stockholders of the Company for
purposes of determining a quorum to transact business contemplated by this Section 1(b) and (ii) vote in favor of any
proposal presented to the Company’s stockholders seeking approval of the sale, issuance and delivery of any Shares
pursuant to this Agreement or approval of any increase in the Company’s authorized capital for purpose of the sale,
issuance and delivery of any Shares pursuant to this Agreement.


 


(c) Payment if
Shares Unable to be Delivered in Whole or in Part. To the extent that the Company is unable to sell, issue and deliver
any Shares pursuant to Section 1(a) of this Agreement due to the failure to have obtained stockholder approval under
the requirements of the Principal Stock Exchange for such sale, issuance and delivery as a result of the Conversion Price not
being at least $1.55 (disregarding, for purposes of this Section 1(c), clause (B) in the definition of Conversion
Price), then with respect to any Payment Amount payable between the date hereof and the Term Loan Facility Maturity Date, the
Company shall (i) sell, issue and deliver on the applicable Settlement Date such number of Shares that it may permissibly
issue under the rules of the Principal Stock Exchange without stockholder approval; (ii) if an exemption from such
stockholder approval requirements (or the required stockholder approval) is later obtained between the date of this Agreement
and the Term Loan Facility Maturity Date, sell, issue and deliver such additional number of Shares that would have been
issued but for the limitation in subclause (i) on the later of (A) the applicable Settlement Date and (B) the Business Day
after obtaining such exemption or stockholder approval; and (iii) if an exemption from such stockholder approval requirements
(or the required stockholder approval) is not obtained between the date of this Agreement and the Term Loan Facility Maturity
Date, pay in cash on the Term Loan Facility Maturity Date that portion of such Payment Amount not paid in Shares pursuant to
subclause (i) or (ii), as applicable.


 


(d) Adjustment
to Conversion Price. If, prior to the applicable Settlement Date, the Company effects a reclassification, stock split
(including a reverse stock split), stock dividend or distribution, recapitalization, merger, issuer tender or exchange offer,
or other similar transaction with respect to any shares of its capital stock, the Conversion Price (including the price set
forth in clause (B) of the definition thereof) shall be equitably adjusted to reflect such change and, as adjusted, shall,
from and after the date of such event, be subject to further adjustment in accordance herewith.


 


(e) Restrictions
During Measurement Period. B. Riley Financial shall not, directly or indirectly, including through one or more of their
respective affiliates, engage in any transactions with respect to the Common Stock intended to or reasonably likely to affect
the market price of the Common Stock, or otherwise buy or sell any shares of Common Stock, during the Measurement Period,
whether taken before or during the Measurement Period.


 






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(f)
Subordination. All payments, whether in the form of Shares or cash, to B. Riley Financial under this Agreement shall be
subject to the provisions of Article XI of the Amended and Restated Credit Agreement and any other subordination terms set
forth therein. For the purposes of Article XI of the Credit Agreement and any other subordination terms set forth therein,
the Fee Payment shall be deemed to be payable in respect of the Tranche A-6 Term Loan Commitments.


 


Section 2.
Representations and Warranties of the Company. The Company represents and warrants to B. Riley Financial as set forth
below:


 


(a) Organization,
Power and Authority. The Company is duly organized and is validly existing and in good standing under the laws of the
State of Delaware. The Company has the requisite corporate power and authority to enter into, execute, and deliver this
Agreement and to perform its obligations hereunder and has taken all necessary action required for the due authorization of
this Agreement.


 


(b) Authorized
and Issued Capital Stock. As of the date hereof, the authorized capital stock of the Company consists of (i) 500,000,000
shares of Common Stock and (ii) 20,000,000 shares of preferred stock, par value $0.01 per share (“Preferred
Stock”). As of May 8, 2020, (i) 46,407,555 shares of Common Stock were issued and outstanding, (ii) 619,181
shares of Common Stock were held in the treasury of the Company, (iii) 2,601,359 shares of Common Stock were reserved for
future issuance pursuant to outstanding stock options and other rights to purchase shares of Common Stock and vesting of
restricted stock units and restricted stock granted under the Company’s stock option or stock-based compensation plans,
(iv) 1,666,667 shares of Common Stock were reserved for issuance pursuant to outstanding warrants to purchase shares of
Common Stock and (v) no shares of Preferred Stock were issued and outstanding. The issued and outstanding shares of Common
Stock have been duly authorized and validly issued and are fully paid and nonassessable, are not subject to and were not
issued in violation of any preemptive or similar rights. Except as set forth in this Section 2(b), and except as
contemplated by the Investor Rights Agreement, dated as of April 30, 2019 (the “Investor Rights
Agreement”), by and among the Company, B. Riley FBR and Vintage Capital Management, LLC, as of the date of this
Agreement, no shares of capital stock or other equity securities or voting interest in the Company are issued, reserved for
issuance, or outstanding. Except as set forth in this Section 2(b), and except as contemplated by the Investor Rights
Agreement, as of the date hereof, the Company is not party to or otherwise bound by or subject to any outstanding option,
warrant, call, subscription, or other right (including any preemptive right), agreement, or commitment that (w) obligates the
Company to issue, deliver, sell, or transfer, or repurchase, redeem, or otherwise acquire, or cause to be issued, delivered,
sold, or transferred, or repurchased, redeemed, or otherwise acquired, any shares of the capital stock of, or other equity or
voting interests in, the Company or any security convertible or exercisable for or exchangeable into any capital stock of, or
other equity or voting interest in, the Company, (x) obligates the Company to issue, grant, extend, or enter into any such
option, warrant, call, right, security, commitment, contract, arrangement, or undertaking, (y) restricts the transfer of any
shares of capital stock of the Company (other than pursuant to restricted stock award agreements under the Company’s
stock option or stock-based compensation plans), or (z) relates to the voting of any shares of capital stock of the Company
(other than the Investor Rights Agreement).


 






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(c) Execution
and Delivery; Enforceability. This Agreement is duly and validly executed and delivered by the Company and
constitutes a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms,
except as may be limited by the effect of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, or
similar laws affecting the enforcement of creditors’ rights generally, and subject to principles of equity and public
policy.


 


(d)
Issuance. The Shares, when issued and delivered on the terms and conditions set forth in this Agreement, will be duly
authorized, validly issued and delivered, and fully paid and nonassessable, and will not be issued in violation of any
preemptive or similar rights.


 


(e) No
Conflict. Assuming the Company is not required to increase the amount of Common Stock it is authorized to issue under its
Restated Certificate of Incorporation in order to sell, issue and deliver the Shares under this Agreement (the
“Capitalization Exception”), the sale, issuance, and delivery of the Shares on the terms and conditions
set forth in this Agreement, and the performance of and compliance with all of the provisions herein by the Company and the
consummation of the transactions contemplated herein, (i) will not conflict with, or result in a breach or violation of, any
of the terms or provisions of, or constitute a default under (with or without notice or lapse of time, or both), or result,
in the acceleration of, or the creation of any lien under, any indenture, mortgage, deed of trust, loan agreement, or other
agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, (ii)
will not result in any violation of the provisions of the Company’s Restated Certificate of Incorporation, as amended,
or Amended and Restated Bylaws or any of the organizational or governance documents of the Company’s subsidiaries, and
(iii) will not result in any violation of, or any termination or impairment of any rights under, any law, statute, rule or
regulation or any license, authorization, injunction, judgment, order, decree, rule, or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties,
except in any such case described in subclauses (i) and (iii) for any conflict, breach, violation, default, acceleration,
lien, termination, or impairment which would not, individually or in the aggregate, reasonably be expected to have a material
adverse effect on the Company and its subsidiaries, taken as a whole, or impair or materially delay the ability of the
Company to perform its obligations hereunder.


 


(f) Consents and
Approvals. Subject to the Capitalization Exception and assuming the accuracy of the representations and warranties of B.
Riley Financial contained in Section 3 and the agreements set forth in Section 4(c), no consent, approval,
authorization, order, registration, or qualification of or with any third party or any court or governmental agency or body
having jurisdiction over the Company or any of its subsidiaries or any of their properties is required for the sale,
issuance, and delivery of the Shares on the terms and conditions set forth in this Agreement, and the performance of and
compliance with all of the provisions herein by the Company and the consummation of the transactions contemplated herein,
except such consents, approvals, authorizations, registrations, or qualifications (i) as may be required under state
securities or blue sky laws in connection with the purchase, acceptance, sale, issuance and delivery of the Shares or (ii)
pursuant to the rules of the Principal Stock Exchange.


 






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(g) No
Reliance. The Company acknowledges that it is not, with respect to its entry into this Agreement (but not the Amended and
Restated Credit Agreement) on the date hereof, relying upon any representation or warranty made by B. Riley Financial not
expressly set forth in this Agreement.


 


Section 3.
Representations and Warranties of B. Riley Financial. B. Riley Financial represents and warrants to the Company as set
forth below:


 


(a)
Organization, Power and Authority. B. Riley Financial is duly organized and is validly existing and in good standing
under the laws of the State of Delaware. B. Riley Financial has the requisite power and authority to enter into, execute, and
deliver this Agreement and to perform its obligations hereunder and has taken all necessary action required for the due
authorization of this Agreement.


 


(b) Execution
and Delivery; Enforceability. This Agreement is duly and validly executed and delivered by B. Riley Financial and
constitutes, or, when executed and delivered, will constitute, a valid and binding obligation of B. Riley Financial,
enforceable against B. Riley Financial in accordance with its terms, except as may be limited by the effect of bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance, or similar laws affecting the enforcement of creditors’
rights generally, and subject to principles of equity and public policy.


 


(c) No
Registration. B. Riley Financial understands that the Shares issued to it have not been registered under the Securities
Act of 1933, as amended (the “Securities Act”), by reason of a specific exemption from the registration
provisions of the Securities Act, the availability of which depends upon, among other things, the bona fide nature of the
investment intent and the accuracy of B. Riley Financial’s representations and warranties as expressed herein or
otherwise made pursuant hereto.


 


(d) Investment
Intent. B. Riley Financial is acquiring the Shares for investment for its own account, not as a nominee or agent, and not
with the view to, or for resale in connection with, any distribution thereof not in compliance with all applicable securities
laws, including the Securities Act. B. Riley Financial has no present intention of selling, granting any participation in, or
otherwise distributing the same, except in compliance with all applicable securities laws, including the Securities Act.


 


(e) Securities
Laws Compliance. The Shares will not be offered for sale, sold, or otherwise transferred by B. Riley Financial except
pursuant to a registration statement or in a transaction exempt from, or not subject to, registration under the Securities
Act and any other applicable securities laws.


 


(f)
Sophistication. B. Riley Financial has such knowledge and experience in financial and business matters that it is capable
of evaluating the merits and risks of its investment in the Shares being acquired hereunder. B. Riley Financial understands
and is able to bear any economic risks associated with such investment (including the delayed delivery of the Shares from the
date hereof until the applicable Settlement Date and the necessity of holding the Shares for an indefinite period of time).
B. Riley Financial acknowledges that it has been afforded the opportunity to ask questions and receive answers concerning
the Company and to obtain additional information that it has requested to verify the information contained herein and evaluate
its investment in the Shares.


 






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(g) Accredited
Investor. B. Riley Financial is an “Accredited Investor” as defined in Rule 501(a) of Regulation D under the
Securities Act.


 


(h) Legended
Securities. B. Riley Financial understands and acknowledges that, upon the original issuance thereof and until such time
as the same is no longer required under any applicable requirements of the Securities Act or other applicable securities
laws, the Company and its transfer agent shall make such notation in the stock book and transfer records of the Company as
may be necessary to record that the Shares have not been registered under the Securities Act and that the Shares may not be
resold without registration under the Securities Act and all other applicable securities laws or pursuant to an exemption
from the registration requirements thereof.


 


(i) No
Conflict. The purchase and acceptance of the Shares acquired by B. Riley Financial on the terms and conditions set forth
in this Agreement, and the performance of and compliance with all of the provisions herein by B. Riley Financial and the
consummation of the transactions contemplated herein, (i) will not conflict with, or result in a breach or violation of, any
of the terms or provisions of, or constitute a default under (with or without notice or lapse of time, or both), or result,
in the acceleration of, or the creation of any lien under, any indenture, mortgage, deed of trust, loan agreement, or other
agreement or instrument to which B. Riley Financial is a party or by which B. Riley Financial is bound or to which any of the
property or assets of B. Riley Financial or any of its subsidiaries is subject, (ii) will not result in any violation of the
provisions of its certificate of incorporation, bylaws, or similar governance documents, and (iii) will not result in any
material violation of, or any termination or material impairment of any rights under, any law, statute, rule or regulation or
any license, authorization, injunction, judgment, order, decree, rule, or regulation of any court or governmental agency or
body having jurisdiction over B. Riley Financial or any of its properties, except in any such case described in subclauses
(i) and (iii) for any conflict, breach, violation, default, acceleration, or lien which would not, individually or in the
aggregate, reasonably be expected to prohibit, materially delay, or materially and adversely affect B. Riley
Financial’s performance of its obligations under this Agreement.


 


(j) Consents and
Approvals. No consent, approval, authorization, order, registration, or qualification of or with any court or
governmental agency or body having jurisdiction over B. Riley Financial or any of its properties is required to be obtained
or made by B. Riley Financial for the purchase and acceptance of the Shares on the terms and conditions set forth in this
Agreement, and the performance of and compliance with all of the provisions herein by B. Riley Financial and the consummation
of the transactions contemplated herein, except for any consent, approval, authorization, order, registration, or
qualification which, if not made or obtained, would not, individually or in the aggregate, reasonably be expected to
prohibit, materially delay, or materially and adversely affect B. Riley Financial’s performance of its obligations
under this Agreement.


 


(k) No
Reliance. B. Riley Financial acknowledges that, with respect to its entry into this Agreement (but not the Amended and
Restated Credit Agreement) on the date hereof, it is not relying upon any representation or warranty made by the Company not
expressly set forth in this Agreement.


 






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Section 4. Additional Covenants
and Agreements of the Parties.


 


(a) Listing;
Registrable Securities. The Company shall use its commercially reasonable efforts to list the Shares on the Principal
Stock Exchange where the Common Stock is then listed or admitted for trading. For the avoidance of doubt, any Shares issued
pursuant to this Agreement shall be “Investor Registrable Securities” under the Registration Rights Agreement,
dated as of April 30, 2019, by and among the Company, B. Riley FBR and Vintage Capital Management, LLC.


 


(b)
Cooperation. Each of the Parties shall use its reasonable best efforts (and shall cause its subsidiaries to use their
respective reasonable best efforts) to reasonably cooperate with all other Parties and to take or cause to be taken all
actions, and do or cause to be done all things, reasonably necessary, proper, or advisable on its or their part under this
Agreement and applicable laws to consummate and make effective the transactions contemplated by this Agreement, including
making and seeking all material governmental and third-party notifications, filings, consents, waivers and approvals required
for the transactions contemplated hereby.


 


(c) Access to
Non-Public Information. B. Riley Financial (i) understands and acknowledges that the Company is in possession of
information about the Company and its operations (which may include material non-public information) that may or may not be
material or superior to information available to B. Riley Financial and the public generally, (ii) waives any claim, or
potential claim, it has or may have against the Company relating to the Company’s possession of material non-public
information in connection with B. Riley Financial’s agreement to purchase and accept Shares pursuant to this Agreement,
(iii) has independently participated in the negotiation of this Agreement and has been represented by separate counsel and
(iv) understands and acknowledges that the Company would not enter into this Agreement in the absence of the representations,
warranties, covenants and agreements set forth in this Section 4(c).


 





(d) Reserves.
The Company shall keep reserved out of its authorized but unissued shares of Common Stock a sufficient number of shares of
Common Stock to satisfy the issuance of the full amount of Shares pursuant to Section 1(a).


 


(e) No Transfer
of Term Loans. Until the earlier to occur of the final Settlement Date or the termination of this Agreement pursuant to Section
6, B. Riley Financial will not, without the Company’s prior written consent, transfer any interest in (i) any Term
Loans or (ii) any interest, fees or other payments owing to it under this Agreement, the Amended and Restated Credit
Agreement or the B. Riley Fee Letter, including the right to receive any part or portion of the Fee Payment and Interest
Payments. Notwithstanding the foregoing, B. Riley Financial may at any time and without the consent of the Company transfer
its interest in any Term Loans or any interest, fees or other payments owing to it under this Agreement, the Amended and
Restated Credit Agreement or the B. Riley Fee Letter, to any wholly owned subsidiary of B. Riley Financial; provided
that (i) B. Riley Financial shall remain liable for any of its obligations hereunder and under the Amended and Restated
Credit Agreement and the B. Riley Fee Letter following any such transfer and (ii) B. Riley Financial and its controlled
affiliates shall be prohibited from transferring any of its ownership interest in such transferee to a third party without
the Company’s prior written consent. Any purported transfer in violation of this Section 4(e) shall be null and
void ab initio.


 






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Section 5.Conditions to the Obligations
of the Parties.


 


(a) Conditions
to the Company Obligation to Deliver Shares. The obligations of the Company to sell, issue and deliver the Shares on each
Settlement Date shall be subject to the satisfaction of each of the following conditions (which may be waived in whole or in
part by the Company in its sole discretion):


 


(i) No statute,
rule, regulation, or order shall have been enacted, adopted, or issued by any federal, state, or foreign governmental or
regulatory authority of competent jurisdiction, and no judgment, injunction, decree, or order of any federal, state, or
foreign court of competent jurisdiction shall have been issued that, in each case, prohibits the sale, issue, delivery,
purchase and acceptance of the Shares as contemplated by this Agreement.


 


(ii) The Shares
shall have been approved for listing on the Principal Stock Exchange, subject to official notice of issuance; provided,
however, that this condition shall not apply in the event the Common Stock is no longer listed and traded on any national
securities exchange as of the applicable Settlement Date.


 


(b) Conditions
to the Obligations of B. Riley Financial to Accept Shares. The obligations of B. Riley Financial to purchase and accept
Shares on each Settlement Date shall be subject to the satisfaction of each of the following conditions (which may be waived
in whole or in part by B. Riley Financial in its sole discretion):


 


(i) No statute,
rule, regulation, or order shall have been enacted, adopted, or issued by any federal, state, or foreign governmental or
regulatory authority of competent jurisdiction, and no judgment, injunction, decree, or order of any federal, state, or
foreign court of competent jurisdiction shall have been issued that, in each case, prohibits the sale, issue, delivery,
purchase and acceptance of the Shares as contemplated by this Agreement.


 


(ii) The Shares
shall have been approved for listing on the Principal Stock Exchange, subject to official notice of issuance; provided,
however, that this condition shall not apply in the event the Common Stock is no longer listed and traded on any national
securities exchange as of the applicable Settlement Date.


 


Section 6.
Termination. This Agreement may be terminated, and the transactions contemplated hereby may be abandoned, at any time
prior to the applicable Settlement Date by (a) mutual written agreement of the Company and B. Riley Financial, (b) by the
Company following a material breach of the Amended and Restated Credit Agreement or this Agreement by B. Riley Financial
(after notice thereof and a reasonable opportunity to cure), or (c) by B. Riley Financial following a material breach of this
Agreement by the Company (after notice thereof and a reasonable opportunity to cure). Upon termination under this Section 6,
all rights and obligations of the Parties shall terminate without any liability of any Party to any other Party except that
(i) nothing contained herein shall release any Party hereto from liability for any willful breach of this Agreement and
(ii) the covenants and agreements made by the Parties herein in Section 4(c) and Sections 6 through 14
will survive indefinitely in accordance with their terms.


 






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Section 7. Notices.
All notices and other communications in connection with this Agreement will be in writing and will be deemed given (and will
be deemed to have been duly given upon receipt) if delivered personally, sent via electronic transmission, mailed by
registered or certified mail (return receipt requested), or delivered by an express courier (with confirmation) to the
parties at the following addresses (or at such other address for a party as will be specified by like notice):


 


If to the Company:


Babcock & Wilcox Enterprises, Inc.


1200 East Market Street, Suite 650


Akron, OH 44305


Attention: General Counsel


 


with a copy (which shall not constitute
notice) to:


Wachtell, Lipton, Rosen & Katz


51 West 52nd Street


New York, NY 10019


Attention: David A. Katz


Email: dakatz@wlrk.com


 


King & Spalding LLP


1180 Peachtree Street, NE


Atlanta, GA 30309


Attention: William Calvin Smith, III


Zachary L. Cochran


Email:    calsmith@kslaw.com


zcochran@kslaw.com


 


If to B. Riley Financial:


B. Riley Financial, Inc.


299 Park Avenue, 21st Floor


New York, NY 10171


Attention: Alan N. Forman, General Counsel


Email: aforman@brileyfin.com


 






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Section 8. Assignment;
Third Party Beneficiaries. Neither this Agreement nor any of the rights, interests, or obligations under this Agreement
(including the right to receive any Shares on any Settlement Date) may be assigned by any Party (whether by operation of law
or otherwise) without the prior written consent of (a) the Company, in the case of an assignment by B. Riley Financial and
(b) B. Riley Financial, in the case of an assignment by the Company. Notwithstanding the foregoing, B. Riley Financial may at
any time and without the consent of the Company assign this Agreement or its rights, interests or obligations hereunder to
any wholly owned subsidiary of B. Riley Financial; provided that (i) B. Riley Financial shall remain liable for any of
its obligations hereunder following any such assignment, (ii) any such assignee shall, as of the effective date of such
assignment, be required to make and be capable of making the representations set forth in Section 3 with respect to
such assignee, (iii) such assignee shall be bound by and subject to the obligations of B. Riley Financial under this
Agreement (including for the avoidance of doubt the transfer restrictions set forth in Section 4(e)) as if such
assignee were a party hereto, and (iv) B. Riley Financial and its controlled affiliates shall be prohibited from transferring
any of its ownership interest in such assignee to a third party without the Company’s prior written consent. Any
purported assignment in violation of this Section 8 shall be null and void ab initio.


 


Section 9. Prior
Negotiations; Entire Agreement; Expenses. This Agreement, the Amended and Restated Credit Agreement and the B. Riley
Fee Letter together constitute the entire agreement of the Parties with respect to the subject matter hereof and supersede
all prior agreements, arrangements, or understandings, whether written or oral, between the Parties with respect to the
transactions contemplated hereby. Each Party shall bear all costs incurred by such Party in connection with the negotiation
and execution of this Agreement and the consummation of the transactions contemplated hereby.


 


Section 10. Governing
Law; Venue. This Agreement is governed in all respects, including as to validity, interpretation and effect, by the laws
of the State of New York, without giving effect to its principles or rules of conflict of laws, to the extent such principles
are not mandatorily applicable by statute and would permit or require the application of the laws of another jurisdiction.
The Parties hereby irrevocably submit to the exclusive jurisdiction of the Courts of the State of New York sitting in New
York County and the United States District Court of the Southern District of New York, and any appellate court from any
thereof solely in respect of the interpretation and enforcement of the provisions of this Agreement, and irrevocably agree
that all claims in respect of the interpretation and enforcement of the provisions of this Agreement, or with respect to any
action or proceeding hereunder, shall be heard and determined in any of the courts of the State of New York sitting in New
York County and the United States District Court of the Southern District of New York, and that such jurisdiction of such
courts with respect thereto shall be exclusive, except solely to the extent that all such courts shall lawfully decline to
exercise such jurisdiction. Each Party hereby waives and agrees not to assert, as a defense in any action, suit or proceeding
for the interpretation or enforcement hereof, that it is not subject to such jurisdiction. Each Party hereby waives and
agrees not to assert, to the maximum extent permitted by law, as a defense in any action, suit or proceeding for the
interpretation or enforcement hereof, that such action, suit or proceeding may not be brought or is not maintainable in such
courts, that the venue thereof may not be appropriate or that this Agreement may not be enforced in or by such courts. The
Parties hereby consent to and grant any such court jurisdiction over the person of such parties and over the subject matter
of any such dispute. THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING
OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) BROUGHT BY EITHER OF THEM AGAINST THE OTHER IN ANY MATTERS
ARISING OUT OF OR IN ANY WAY CONNECTED WITH OR CONTEMPLATED BY THIS AGREEMENT.


 






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Section 11. Counterparts.
This Agreement may be executed in any number of counterparts, all of which will be considered one and the same agreement and will
become effective when counterparts have been signed by each of the parties and delivered to the other Parties (including via facsimile
or other electronic transmission), it being understood that each Party need not sign the same counterpart.


 


Section 12. Waivers
and Amendments.


 


(a) Waivers and
Amendments Generally. This Agreement may be amended, modified, superseded, cancelled, renewed, or extended, and the terms
and conditions of this Agreement may be waived, only by a written instrument signed by all the Parties (and, in the case of a
modification to or waiver of Section 13, by B. Riley FBR) or, in the case of a waiver, by the Party waiving
compliance. No delay on the part of any Party in exercising any right, power, or privilege pursuant to this Agreement will
operate as a waiver thereof, nor will any waiver on the part of any Party of any right, power, or privilege pursuant to this
Agreement, nor will any single or partial exercise of any right, power, or privilege pursuant to this Agreement, preclude any
other or further exercise thereof or the exercise of any other right, power, or privilege pursuant to this Agreement. The
rights and remedies provided pursuant to this Agreement are cumulative and are not exclusive of any rights or remedies which
any Party otherwise may have at law or in equity.


 


(b) Waivers, Amendments
and Consents by the Company. Until the later of (i) the date when the services of the Company’s Chief Executive
Officer are no longer provided by an affiliate of B. Riley Financial and (ii) B. Riley FBR no longer holds the right to nominate
any directors to serve on the Company’s board of directors pursuant to the Investor Rights Agreement or any other agreement
with the Company, any amendment, wavier or consent given on behalf of the Company in connection with this Agreement shall not
be effective unless approved by a majority of the members of the Company’s board of directors on the date of such action
that are independent of B. Riley Financial under applicable law.





 


Section 13. Waiver
of Certain Preemptive Rights. B. Riley FBR hereby (i) consents to the offer, sale, issue and delivery of the Shares pursuant
to this Agreement and waives any and all notice requirements with respect to hereto pursuant to Section 3 of the Investor Rights
Agreement and (ii) waives its right to purchase or otherwise acquire shares of Common Stock in accordance with Section 3 of the
Investor Rights Agreement in connection with the transactions contemplated hereby.


 


Section 14. Definitions; Interpretation.
All capitalized terms used in this Agreement without definition have the respective meanings ascribed to them in the Amended and
Restated Credit Agreement. When a reference is made in this Agreement to “Sections” such reference shall be to a Section
of this Agreement unless otherwise indicated. The terms defined in the singular have a comparable meaning when used in the plural,
and vice versa. The headings contained in this Agreement are for reference purposes only and are not part of this Agreement. Whenever
the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed
followed by the words “without limitation.” No rule of construction against the draftsperson shall be applied in connection
with the interpretation or enforcement of this Agreement, as this Agreement is the product of negotiation between sophisticated
parties advised by counsel. All references to “$” or “dollars” mean the lawful currency of the United States
of America. Except as expressly stated in this Agreement, all references to any statute, rule or regulation are to the statute,
rule or regulation as amended, modified, supplemented or replaced from time to time (and, in the case of statutes, include any
rules and regulations promulgated under the statute) and to any section of any statute, rule or regulation include any successor
to the section. Whenever the words “hereof”, “hereby”, “herein” and “hereunder”
and words of like import are used in this Agreement, they shall refer to this Agreement as a whole and not to any particular provision
of this Agreement. “Business Day” means any day except a Saturday, a Sunday or any other day on which commercial banks
are required or authorized by law to close in New York, New York.


 



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IN WITNESS WHEREOF, the Parties have caused
this Agreement to be duly executed and delivered all as of the date first written above.


 


	Babcock & Wilcox Enterprises,
    Inc.	 
	 	 	 	 
	By:	/s/
    Dwayne M. Petish	
	 	Name:	Dwayne M. Petish	
	 	Title:	Treasurer	


 


	B. Riley Financial, Inc.	 
	 	 	 	 
	By:	/s/
    Bryant R. Riley	
	 	Name:	Bryant R. Riley	 
	 	Title:	Co-CEO	 


 


	B. Riley FBR, Inc.,	 
	solely for purposes of Section 13
    hereof	 
	 	 	 	 
	By:	/s/
    Michael McCoy	
	 	Name:	Michael McCoy	 
	 	Title:	CFO	 


 


[Signature
Page – Fee and Interest Equitization Agreement]


 


 


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